Adoption (Stepparent)
The adoption process can be incredibly complicated. Our firm only handles stepparent adoptions of minor children and most adoptions of an adult. It is imperative to have an experienced lawyer on your side to help your case go smoothly. David S. Hughey has extensive experience in handling stepparent adoptions and can handle all of the legal issues, allowing you can focus on your family. Before the court can grant a transfer of rights to a stepparent, the biological or court-ordered parent's parental rights must be terminated. Termination can be done voluntarily by an Affidavit of Relinquishment that meets the law's requirements or involuntarily by "clear and convincing" evidence of any of the named statutory grounds. A stepparent may proceed with the adoption provided the child has resided with the party seeking the approval at least six months, the managing conservator has consented to the transfer of parental rights, and an approved social study with requisite background report recommends the adoption. Despite all the vigorous details that we would expect for the protection of minor children, stepparent adoption is a gratifying process for both the parent and the child as it often is a defining legal moment for a relationship that has already been a natural parent/child relationship.
Alimony, Spousal Maintenance,
or Temporary Spousal Support
Many states use the term alimony, but in Texas, we define it as "maintenance." Spousal maintenance provides the lower-income spouse with money for living expenses over and above the child support funds. Temporary Spousal Support typically is awarded while the divorce is pending. If granted, spousal maintenance is for a defined period following the date the court enters a divorce decree. There is no guarantee of spousal maintenance or temporary spousal support in Texas. Many different factors determine whether or not you or your spouse will be eligible for spousal maintenance or into deciding the maintenance amount. The decision is ultimately at the judge's discretion.
Child Custody
Custody is the charge and control of a child, including the right to make all major decisions such as residence, medical, legal, education, training, health, and welfare. Custody is a combination of physical and legal custody. Many factors influence the court's decision, and the way your case is presented before the court can have a tremendous impact on the result you and your children can obtain.
The phrase "child custody" is really what the Texas Family Code addresses as "Conservatorship, Possession, and Access" in Chapter 153, T.F.C. The very first section begins with the public policy of the State of Texas regarding parents and their minor children which is to:
Assure that children have frequent and continuing contact with their parents; (provided said parent has shown the ability to act in the child's best interest)
Provide a safe, stable and nonviolent environment for the child; and
Encourage parents to share the rights and duties of raising their child after divorce or separation.
David S. Hughey is often retained by parents that desperately want to provide their lawyer with relevant evidence but are unsure, confused, or overwhelmed. A good rule of thumb concerning relevant evidence for a "custody" dispute is David S. Hughey's "nanny rule." Try to imagine that you were hiring a full-time nanny to care for your child. Everything you would want to know about the proposed nanny's background is very similar to the process a judge goes through to make decisions about conservatorship, possession, and access. The primary consideration in the entire process is the "best interest of the child." Children 12 years of age or older will be interviewed by the court to determine which parent they wish to decide their primary residence. The court "may" interview children of younger ages or for other issues. Many different statutorily defined fact patterns will have a significant impact on the outcome of your case. They may result in more limited access or supervised visitation: a history of domestic violence, neglect, physical abuse, emotional abuse, sexual abuse, or substance abuse. However, the Texas Family Code requires that at the onset of the trial court, "presume" that the parents should be appointed Joint Managing Conservators because it is in the child's best interest.
The Texas Family Code also requires that the trial court "presume" that the noncustodial parent "reasonable minimum possession" is Guideline Standard Possession for children three years of age or older. This presumption can be rebutted by the custodial parent by evidence showing that standard possession is inappropriate, unworkable, or otherwise not in the child's best interest. In determining an appropriate possession schedule for children under 3, the Family Texas Code lists numerous relevant factors that the trial court must consider.
Child Support
In Texas, it is "rebuttably presumed" that it is in the child's best interest for the court to follow the guidelines contained in T.F.C. Chapter 154, Subchapter C, in deciding a reasonable amount of periodic support. There are 17 listed components for the court to consider, with the last factor being essentially any other reasonable factor. The court will use the guidelines to determine a parent's "net resources" and apply a percentage (%) to calculate monthly child support. If a "payor" or the parent ordered to pay child support has minor children from another household, this lowers the state guideline percentage somewhat. The child support guidelines also permit the trial court to award "Retroactive child support" and require the "Medical and Dental" support of a child as well (T.F.C. Chapter 154, Subchapter D.).
Child Visitation
A noncustodial parent's right to visit or spend time with his or her children is a crucial legal arrangement. Child visitation can take a variety of forms or schedules. Some common provisions include the following:
Standard or expanded standard visitation;
Alternate weekend visitation with the noncustodial parent, including three-day holidays;
Mid-week visitation with the noncustodial parent;
Sharing of the child during periods of school recess: winter, spring, and summer;
New Year's Eve, Easter, Rosh Hashanah, and Yom Kippur. Thanksgiving, and Christmas with one parent or the other in alternate years;
Mother's Day with Mother and Father's Day with Father;
Alternate years on the child's birthday;
Open telephone contact by the parent who does not have actual physical custody of the child;
Exchange of a few visitation days if mutually agreed without the need for a change or modification of the court order; and
Schedule based upon a set work schedule (for example, police officers and pilots).
Common Law or
Informal Marriages
Texas recognizes what most people refer to as Common Law Marriage. Texas Family Code Chapter 2, Subchapter E defines them as "Marriages without Formalities" or "Informal Marriage." If a marriage meets the statutory requirements, it can have a tremendous impact on a party's rights in the dissolution of long-term relationships. It is not uncommon for people to live for years together without realizing that they were "legally" married. A couple can be "legally married" by recording a certificate or declaration of informal marriage in their county clerk's office. Likewise and perhaps even more casual, an "Informal Marriage" can be proved by merely showing that "the man and woman agreed to be married and after the agreement, they lived together in this state as husband and wife, and they represented to others that they were married." If a marriage is proven, it will entitle a spouse to the same rights and duties of couples married by ceremonies such as community and separate property, spousal maintenance, the division of assets and debts during the marriage, possible insurance coverage, and other rights and duties.
Conservatorship
See discussion above under "Child Custody." This term includes Joint Managing Conservatorship, Sole Managing Conservatorship, Possessory Conservatorship, and can be granted by the trial court to non-parents such as grandparents, aunts, uncles, siblings, or other court-ordered persons.
Contempt or
Enforcement
If someone violates an order, you can bring a motion for enforcement or contempt to the court for specific orders. Typically, people file these in the circumstances involving a divorce decree, child custody arrangement, spousal or child support agreement, or a breached protective order. Remedies for such a violation can also stem from a prior injunction, temporary restraining order, or standing order. (T.F.C. Chapter 157).
Divorce
A court of law is the only way to obtain a divorce decree, dissolution, annulment, or another form of terminating a marriage. Other than the termination of the marital estate, the court also has jurisdiction to resolve other issues intertwined in the existing marriage which include, but are not limited to custody and visitation rights, the division of property of the marital estate, spousal support, child support, restraining orders, and other issues.
The Texas Family Code provides that a trial court may grant a divorce on "insupportability" (or no-fault) or the grounds of a fault such as cruelty, adultery, abandonment, the conviction of a felony, and others. The trial court also can grant an annulment or even declare a marriage void under certain circumstances.
Grandparent Rights
Grandparents can seek custody or visitation of a child under a variety of circumstances. You, as a grandparent or other non-parent have immediate standing to intervene if the child or the child's parent has lived with you for six months, a court has named you as a guardian, you can meet Texas Family Code "standing" requirements based upon the current living conditions or if the people caring for the child or both of the parents have agreed the child should go live with you. The court will look at the child's best interests and decide each case individually, but courts presume it is in the child's best interest to remain in the care of his or her parent. The crucial court case Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000) has changed and better-defined grandparent rights in a custody dispute. A grandparent must prove that living with the parents is very harmful (i.e., significant physical or emotional impairment) to the child to overcome this presumption.
Jurisdictional Issues
When faced with a custodial parent attempting to relocate, a court will generally require that parents give the other parent a minimum amount of notice before the anticipated move. This notice provides the noncustodial parent an opportunity to go to court and seek orders restraining the child's relocation. These so-called "move away cases" have gone back and forth on allowing and disallowing a custodial parent to move with minor children for over 20 years. While the best interests of the child have always been central to the decision, the uncertainty has made this area murky. Our firm highly recommends the assistance of counsel if there is any disagreement between the parents. If an issue involves two or more states, then it is governed by the Uniform Child Custody Jurisdiction Act (UCCJA) and the Federal Parental Kidnapping Prevention Act (PKPA).
Modification
You may still bring an action to modify or change terms of any divorce decree or other court order, even after your divorce is final. However, circumstances must have materially changed, or there must be a concern that your ex-spouse is not abiding by the terms of custody, support, or visitation agreement. While the modification action is pending, a parent may make requests for a temporary order covering conservatorship, possession, access, child support, health care, injunctions, or other claims. If you requested temporary order relief to change who determines the child's primary residence, you have an elevated burden of proof to show the trial court that:
The child's present circumstances would significantly impair the child's physical health or emotional development;
There was a voluntary relinquishment of the child for more than six months; or
A child 12 years of age or older expressed a preference to change in chambers with the judge, and it was approved.
On a final hearing, the party requesting the modifications must show the changed circumstances of a parent, or the child, and why it's modification is in the child's best interests. There are numerous statutory requirements and limitations concerning the particular change that a party seeks (T.F.C. Chapter 156, Subchapter B). It is vital that you hire a practitioner with experience and provide evidence as to the circumstances that existed on the date of the most current order and a comparison as to how those circumstances exist today.
Name Change
Our firm can help you change your name and navigate a complicated legal system. As simple as the forms look, they can be confusing and have other statutorily required steps for a successful name change of an adult or a minor. Texas Family Code Chapter 45 sets out what is required and who may file.
Paternity or Parentage
Establishing legal parentage and the rights and duties that accompany it is known as paternity. There can be a difference between a biological father and a legal father. When a child is born, the mother's name automatically appears on the birth certificate. If she is married, her husband is the "presumed" father of the child. Likewise, a father named by a birth certificate is a "presumed" parent. If the parents are not married, it is essential for the mother, the father, and above all the child, to establish paternity. Depending on whether or not a child has a presumed father, there can be time limitations when a person may seek parentage adjudication. Whether it be the mother or father, a person seeking the adjudication of parentage must file a Petition for Parentage in the appropriate court. "Genetic Testing," or more commonly known as D.N.A. testing, can be ordered by the court (T.F.C. Chapter 160, subchapter F). The trial court has discretion in its award of these costs. Depending on the testing outcome, the court may also make decisions on a temporary or final basis concerning conservatorship, possession, access, child support, medical support, name change, other matters. The court also has the authority to award retroactive child support primarily based upon evidence concerning the mother's diligence at informing the father of his child and allowing a relationship and the father's persistence to maintain a relationship with the child and prove past support. Parentage suits are the most common area of practice where we see parents trying to represent themselves against the other parent or lawyers representing the State of Texas Attorney General's office. There are numerous complex issues that you should discuss with an experienced lawyer before any hearing.
Restraining Orders or
Family Protective Orders
Sometimes it becomes necessary to file a Family Protective Order to protect yourself or your children. A protective order is an order that is issued to prevent continuing acts of family violence, sexual assault, human trafficking, or stalking. Upon the proper evidence, a Family Protective Order can dictate that one person cannot make contact with or be within a defined distance of another (T.F.C. Chapter 85). Violating such an order can result in arrest, jail time, and a fine.
To be granted a Family Protective Order, one must show:
Family violence has occurred; and
Family violence is likely to occur in the future.
A trial court in a pending family law case may grant a Temporary Restraining Order without bond or Temporary Injunctions on relevant facts. Many counties have simplified the process with "Standing Orders" that act as mutual injunctions while your case is pending. It is imperative that you read and are familiar with these Standing Orders when your suit is filed by one of the parties because they can be enforced against you and held in contempt.